[2014] KEHC 644 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL CASE NO. 263 OF 2013

KEN JOHN SALAMBA OMIDO...............................................................PLAINTIFF

VS

HELLEN WANJIKU KURUTU..............................................................DEFENDANT

RULING

This application dated 30. 9.2014 states that it is brought under sections 1A, 1B,3B and 63 (d) and (e) of the Civil Procedure Act and other enabling laws and seeks orders;

That the application be certified as urgent and be heard ex-parte in the first instant.

The court be pleased to order the defendant/respondent to deposit 1,200,000/= held by her pursuant to sale agreement she entered into with the applicant on 2/1/2007 in court pending the hearing of the case.

That the court be pleased to order the defendant/respondent to deposit 2,400,000/= held by her pursuant to a sale agreement entered into with the applicant on 18/7/2009 in court pending the hearing of the case.

That in the alternative the court does order the defendant to deposit the aforesaid sums in a joint interest account held by the parties advocate.

That the costs of this application be provided for.

It is predicated upon the following grounds;

(a) The applicant bought and paid the respondent 3,600,000/= in pursuant to two agreements made in diverse dates over three distinct plots of land held by defendant.

(b) That despite numerous requests by the applicant to effect transfer of the aforementioned land parcels in his favour the respondent has been adamant.

(c ) The applicant is apprehensive the respondent may have utilized his money either in last election campaign when she was vying for a political seat or alternatively her funds are fueling the instant suit.

(d) That unless all parties are put paripasu the defendant had undue advantage.

(e ) That it is in the best interest the money is protected pending the main hearing .

It was supported by the supporting Affidavit of the plaintiff applicant sworn on 30/9/2014.

The defendant filed her grounds of opposition dated 8/10/2014 on the same day.

The application was heard orally. The applicant told the court that he wanted the respondent ordered to deposit the sum of kshs 3. 6 million which the respondent received but had failed to transfer the pieces of land which were the subject of this suit to the applicant. He submitted that it was veritably unconscionable that the respondent would be allowed to retain the applicant's money in the sum of 3. 6 million shillings and at the same time refuse to honour her contractual responsibility of transferring the two apposite pieces of land to the applicant.

The respondent countered that granting the orders sought would amount to granting the applicant a judgment and a decree before the suit had been heard and determined.

The respondent also submitted that the provisions cited as being the basis of this application were not relevant to the substance of the application. One of her grounds of opposition was that the application did not meet the threshold of order 39 Rule 1 of the Civil Procedure Rules regarding when security could be furnished by a defendant.

Another ground was that the application was not in the nature of an application for summary judgment or judgment on admission in terms of Order 36 Rule 1 and Order 13 Rule 2 of the Civil Procedure Rules from which there would ensue a decree of the nature sought by the applicant.

The respondent's advocate told the court that she had a strong defence of limitation under the Limitation of Actions Act.

I have considered the averments and the submissions of the parties. A perusal of the plaintiff's prayer in his plaint contains prayer (b) which reads:

“In the alternative to (a) above the defendant be ordered to refund to the plaintiff the consideration already paid in the sum of Kshs 3,600,000/=”

This application seeks the grant of this final prayer.

I need not re-inevent the wheel. The court of Appeal in the case of Mbuthia Versus Jimba Credit Corporation and Another (1988) KLRIopined.

“ The correct approach in dealing with an application for an interlocutory injunction is not to decide the issue of facts, but rather to weigh up the relevant strength of each side's propositions. The lower court judge in this case had gone far beyond his proper duties and made final findings of fact on disputed affidavits.”

It is clear that should this court grant prayers 2,3,and 4 as sought in the application, it would be making findings on issues which can only be determined after the suit has been heard and determined.

In the circumstances, I dismiss the application.

Costs shall be in the cause

Delivered in Open Court at Meru this 4th day of November, 2014 in the presence of;

Cc. Lilian/Arimi

Mutunga for Plaintiff/Applicant

Mwangi for Respondent

P. M. NJOROGE

JUDGE